It was amazing how freeing it was, to not have a bag to deal with, to shift, to move around to the front of your body and then to the back, to switch from arm to arm. Your arms swing unencumbered; you walk differently, faster. You can shove both hands in your pockets; you can put your hands on your hips while waiting impatiently for a light to change. I also noticed that some people gave me funny looks; whether it was "There's a woman without a bag!" or "Why the hell is she wearing a circle skirt in a grass-green camouflage print?" I couldn't tell.

Ha! A Dress a Day is a good blog. I'm adding it to the blogroll. And here's a pretty cool old post about prettiness:

But what does you-don't-have-to-be-pretty mean in practical, everyday terms? It means that you don't have to apologize for wearing things that are held to be "unflattering" or "unfashionable" -- especially if, in fact, they make you happy on some level deeper than just being pretty does. So what if your favorite color isn't a "good" color on you? So what if you are "too fat" (by some arbitrary measure) for a sleeveless top? If you are clean, are covered enough to avoid a citation for public indecency, and have bandaged any open wounds, you can wear any color or style you please, if it makes you happy.

I'm in a café, using the café's WiFi, but I can see a list of all the signals within range, many of which are private and password protected. You can name your wireless network whatever you want. A lot of people put no effort into the name. They leave it "linksys" or they just put their first name. Some people do something more expressive, maybe promoting an artist or a cause they care about. But the list I'm seeing on my computer right now includes an offensive epithet! Somebody is imposing his ugliness on my space -- a new variation on graffiti.

She was sentenced to 45 days in jail for driving (more than once) on a license that was suspended because she was caught driving with a blood alcohol level of .08%, the point where violation of the law begins. (If only she'd been a tiny bit less skinny, would she have had a few drops more blood and scored a .o79?)

She will not be allowed any work release, furloughs, use of an alternative jail or electronic monitoring in lieu of jail, Superior Court Judge Michael T. Sauer ruled after a hearing....

She was then ordered to report to a women's jail in suburban Lynwood by the set date or face 90 days behind bars. The judge's ruling excluded her from paying to serve time in a jail of her choice, as some violators are allowed to do....

"I can't believe that either attorney did not tell her that the suspension had been upheld," the judge said. "She wanted to disregard everything that was said and continue to drive no matter what."

It seems obvious to me that she's being treated worse because of her celebrity, though I can see how you could say that she acted different -- flouting the law -- because of her celebrity. Even so, she didn't deserve that much. Start here if you want to read what other bloggers are saying. I think Jeralynn Merritt gets it right. There's something surpassingly creepy about the lefty bloggers like TRex who burst with pleasure when the overbearing power of the state comes down on someone they happen not to like. (And take a look at the comments on that TRex post if you want to get an idea of what kind of nitwits make up the big traffic at FireDogLake.)

ADDED: I wish people wouldn't take one phrase from this post out of context as if I'd made a flat assertion that she was treated worse. I'm basically asking the question and saying that I support equal treatment. I don't want her treated worse or better. I'm also saying that it makes me sick when people gloat when someone is sent to jail. I think it's wrong to enjoy seeing someone suffer, even if that person is terrible. (I've said it before.)

This article was worth reading if only to get the answer to the question I had watching the Republican debate the other day: Who were the three candidates who raised their hands to indicate their disbelief in evolution? The answer is Sam Brownback, Mike Huckabee, and Tom Tancredo. (I found the minor candidates very hard to tell apart, even in the closeups.)

But this is a nice article going into the question of whether Darwinian theory offers good support for various conservative positions, "that Darwin’s scientific theories about the evolution of species can be applied to today’s patterns of human behavior, and that natural selection can provide support for many bedrock conservative ideas, like traditional social roles for men and women, free-market capitalism and governmental checks and balances."

The question whether to use Darwinism in political argument is, of course, different from the biological question whether the human animal resulted from evolution (which is what Brownback, Huckabee, and Tancredo look foolish rejecting).

“The current debate is not primarily about religious fundamentalism,”[John G.] West, the author of “Darwin’s Conservatives: The Misguided Quest” (2006), said at Thursday’s conference. “Nor is it simply an irrelevant rehashing of certain esoteric points of biology and philosophy. Darwinian reductionism has become culturally pervasive and inextricably intertwined with contemporary conflicts over traditional morality, personal responsibility, sex and family, and bioethics.”

The technocrats, he charged, wanted to grab control from “ordinary citizens and their elected representatives” so that they alone could make decisions over “controversial issues such as sex education, partial-birth abortion, euthanasia, embryonic stem cell research and global warming.”...

Mr. Arnhart, in his 2005 book, “Darwinian Conservatism,” tackled the issue of conservatism’s compatibility with evolutionary theory head on, saying Darwinists and conservatives share a similar view of human beings: they are imperfect; they have organized in male-dominated hierarchies; they have a natural instinct for accumulation and power; and their moral thought has evolved over time.

The institutions that successfully evolved to deal with this natural order were conservative ones, founded in sentiment, tradition and judgment, like limited government and a system of balances to curb unchecked power, he explains. Unlike leftists, who assume “a utopian vision of human nature” liberated from the constraints of biology, [political scientist Larry] Arnhart says, conservatives assume that evolved social traditions have more wisdom than rationally planned reforms.

While Darwinism does not resolve specific policy debates, Mr. Arnhart said in an interview on Thursday, it can provide overarching guidelines. Policies that are in tune with human nature, for example, like a male military or traditional social and sex roles, he said, are more likely to succeed. He added that “moral sympathy for the suffering of fellow human beings” allows for aid to the poor, weak and ill.

So Darwinism only provides a form for political argument, not the actual answers. As the article notes, lefties and righties have found ways to say what they want to say in Darwinian style. It's interesting to think about who benefits most from the acceptance of arguments in this mode. It seems to work awfully well for justifying the subordination of women. Why should we want to promote modes of argument that work too well to support things you diapprove of? I haven't read Arnhart's book, but he seems to think he can whip out "moral sympathy" to get him out of whatever jam his Darwinism gets him into. But if we actually believe in this political Darwinism, won't it affect how sympathetic we are and what we are sympathetic about?

James E. Schrager, clinical professor of entrepreneurship and strategy at the University of Chicago Graduate School of Business, explains why the two companies did not merge well.

Profit margins at Kinko’s have fallen, revenue has barely grown and employee turnover, which was 42 percent in 2005, was still a daunting 27 percent last year. Paul Orfalea, who was nicknamed Kinko for the full head of curly black hair he sported in 1970 when he founded the company — originally to serve students at the University of California, Santa Barbara — says he will not step inside the stores now.

“It gives me a stomachache to see what’s happened to the place,” Mr. Orfalea, now balding, said.

I adore Orfalea, who wrote a memoir called "Copy This! How I turned Dyslexia, ADHD, and 100 square feet into a company called Kinko's." He got me through the loneliest segment of that 1235 mile drive from Austin to Madison last month as I clicked the satellite radio over to C-Span and heard him giving a talk based on that memoir. What a wonderful, inspiring guy! Did you know Kinko's is called Kinko's because Ofalea was called Kinko because of his kinky hair? By chance, C-Span TV happens to be replaying that show at 12:10 Eastern Time today. [ADDED: Or watch it right here. AND: No, it's gone now.] I'm going to set my TiVo right now. He's incredibly interesting.

“Kinko’s was a way station where you stayed a few years, but you build a career at FedEx,” [said Kenneth A. May, the chief executive of FedEx Kinko’s.] “The Kinko’s people are hip, they’re fun, but they needed oversight.”

Kinko’s workers, many of whom still tell tales of the annual picnics Mr. Orfalea gave for co-workers (he hated the word “employee”), describe an entirely different situation.

Kinko’s coddled its workers, they say, who in turn coddled customers. “I had cornrows and green hair, and no one seemed to mind,” recalled Sharon A. Robinson, once a worker at a Kinko’s in Laramie, Wyo., and now a product specialist....

“It was the People’s Republic of Kinko’s, a place where store managers thumbed their noses at corporate and ran the stores as they saw fit,” said Gary M. Kusin, a retailer who was recruited by Clayton to run Kinko’s in August 2001. [Orfaleo sold his company to Clayton and Clayton sold to FeEx.] ...

Clayton formed a central organization, and proceeded to do what buyout firms do best — cut costs, streamline operations, and groom Kinko’s to go public.

But it went too far, in Mr. Orfalea’s view. “I told them that our biggest asset was the sparkle in our peoples’ eyes,” he said. “But they threw away senior people like garbage.”

“Our decision at the end was not to name any names,” said Brian Ross, the news correspondent who presented the segment. Mr. Ross said that the network went with a “conservative approach,” and that “based on our reporting it turned out not to be as newsworthy as we thought in terms of the names.”

At least they're being honest -- it seems -- in not pretending they'd belatedly discovered some ethical compunction about it.

ABC had reported on its Web site on Monday that the list included a Bush administration economist along with senior military officials and lobbyists, among others.

The administration economist turned out to be a mid-level employee at the Office of Thrift Supervision who was not worth naming, ABC officials said. But the man’s case, network officials said, demonstrated that men sometimes exaggerate their importance to the women they pay for company.

And networks sometimes exaggerate the importance of their upcoming news shows to the viewers they sell to advertisers.

May 4, 2007

Manolo sees the artist and his demons. I see what looks like another example of taking the post-marriage struggle to YouTube.

ADDED: If you click through to the video on YouTube, read the comments. They're impressively sympathetic to the man. Posting this video was a vicious effort to humiliate him, and I'm touched at how few viewers go there.

ADDED: Some people are balking at answering all the questions, but doing so will produce some nice graphs, which you'll be able to see next week, showing things about the readers who do the survey starting from here. And it will help sell more ads which will create income flow to bloggers. I think that's a good thing. It's free to read, and I love having readers, but ads should support bloggers. Obviously, I have a good income as a law professor, and I'm happy for that, but writing should produce income. Not all of us writers have a separate income stream, and who knows? Maybe some lawprofs would thrive as full-time writers if you gave us the chance.

McCain's strong criticism of a "badly mismanaged" war gave him the edge in my book. McCain was easily the strongest on spending.... He also forthrightly supported evolution which puts him in the ranks of sane Republicans.... I have to say I found Romney smarmy beyond even my expectations. The man will obviously say and do anything to get power or please a crowd.... Giuliani is simply not a very impressive speaker or debater...

Frankly, I think John McCain had the best night. He seemed a bit nervous at first, but soon found his stride. He managed more ably than his chief rivals, McCain [sic] and Romney, to give answers that will appeal to a reasonably full spectrum of Republican voters without seeming to pander to anyone.

John McCain won. Let's not dance around this. Mitt Romney shined, he stood out, he did well. Rudy Giuliani imploded. Rudy totally and utterly self-destructed tonight. He had many chances to get in good with the core base of Republican voters and ignored every moment.

But McCain cuisine reigned supreme. He served up a dish of anger, a willingness to criticize, and a desire to fight — hard.

What's really going on here? Looks like people really want to destroy Giuliani. Power Line even blots out his name.

I thought McCain was fine. You could see he was trying very hard and seemed to have a lot of memorized lines. He had a forced tough-guy style of speaking. But I thought it was clear that Romney was the one who excelled. Was I a sucker for "smarmy"? Or did Andrew Sullivan just already hate Romney?

ADDED: Jonah Goldberg:

McCain sent the signal he's all nerve, raw, exposed, slightly crazy nerve. The "gates of Hell" line, for example, was brilliant, if not brilliantly delivered. He's going to be a mad dog — for you.

Meanwhile, Giuliani seems to have forgotten why he's the front runner. Optimism is nice, hooray for cheeriness. But what the base wants to here is proof that he's going to be the "tough S.O.B. — for us." He didn't even come close to doing that. Meanwhile, McCain went almost too far in that direction last night. But too far in this situation is a lot better than not far enough.

Okaaay.

MORE: I should say that Power Line quote above is from Paul Mirengoff and that Power Line's John Hinderaker adds (to the same post):

... I thought Romney did best by a pretty wide margin. Giuliani did OK question by question, I thought, but didn't present as coherent a whole. McCain seemed surprisingly ill at ease, especially early on, and while I liked most of what he had to say, I don't think he was as effective as usual.

The students at Liverpool High have used their school-issued laptops to exchange answers on tests, download pornography and hack into local businesses. When the school tightened its network security, a 10th grader not only found a way around it but also posted step-by-step instructions on the Web for others to follow (which they did).

Scores of the leased laptops break down each month, and every other morning, when the entire school has study hall, the network inevitably freezes because of the sheer number of students roaming the Internet instead of getting help from teachers.

So the Liverpool Central School District, just outside Syracuse, has decided to phase out laptops starting this fall, joining a handful of other schools around the country that adopted one-to-one computing programs and are now abandoning them as educationally empty — and worse.

Many of these districts had sought to prepare their students for a technology-driven world and close the so-called digital divide between students who had computers at home and those who did not.

“After seven years, there was literally no evidence it had any impact on student achievement — none,” said Mark Lawson, the school board president here in Liverpool, one of the first districts in New York State to experiment with putting technology directly into students’ hands. “The teachers were telling us when there’s a one-to-one relationship between the student and the laptop, the box gets in the way. It’s a distraction to the educational process.”

Speaking of distractions, it sounds like you're trying to distract us from the fact that you gave them internet access but kept it inadequate, that you hate the idea that they're taking control of what they want to find out about (especially sex), and that you've been failing all along to educate students and you were foolishly hoping giving them laptops would magically fix that.

Agents and media lawyers say one clause in Imus's contract, highlighted by Garbus, is highly unusual. It says his services "are of a unique, extraordinary, irreverent, intellectual, topical, controversial and personal character" and that programs containing these elements "are desired" by CBS and "are consistent with company rules and policies."

But other contract language, obtained by The Washington Post, will be used by CBS lawyers to argue that the company had "just cause" to dump Imus. These clauses cover "any distasteful or offensive words or phrases" that CBS believes "would not be in the public interest" or could jeopardize its broadcast license, as well as language that brings the company or its advertisers "into public disrepute, contempt, scandal or ridicule, or which provokes, insults or offends the community or any group or class thereof."

A CBS spokesman declined to comment, but two people familiar with the company's strategy, who asked not to be identified discussing possible litigation, said the Rutgers comments were so outrageous as to trigger several clauses that they maintain did not require a warning to Imus.

Garbus dismissed that argument, saying: "CBS's interpretation of the contract, stringing together words from here and there, would render the clause meaningless. Contracts are not interpreted that way."

It sounds like a great contracts case. High stakes too. The contract was worth $40 million, and he's going to claim other damages, covering "reduced income for Imus's private businesses and charities, as well as his future earnings in broadcasting."

It's smart to make the charities relevant like that, not only as a way to extract more money from CBS, but also to expose the jury to information that makes Imus very sympathetic.

[Jerome I. Rodale] was extremely funny for half an hour, talking about health foods, and as a friendly gesture he offered me some of his special asparagus, boiled in urine. I think I said, “Anybody’s we know?” while making a mental note to have him back.

I brought out the next guest, Pete Hamill, whose column ran in The New York Post. Rodale moved “down one” to the couch. As Pete and I began to chat, Mr. Rodale suddenly made a snoring sound, which got a laugh.

Comics would sometimes do that for a laugh while another comic was talking, pretending boredom. His head tilted to the side as Pete, in close-up as it happened, whispered audibly, “This looks bad.”

The audience laughed at that. I didn’t, because I knew Rodale was dead.

To this day, I don’t know how I knew. I thought, “Good God, I’m in charge here. What do I do?” Next thing I knew I was holding his wrist, thinking, I don’t know anything about what a wrist is supposed to feel like.

Next, in what felt like a quick film cut, I was standing at the edge of the stage, saying, “Is there a doctor in the … (pause) … audience?”

He had the wits to know to figure out how not to say "Is there a doctor in the house?" which would have made people laugh.

The show was never aired, but Cavett did watch the tape a view weeks later:

[W]e noticed three things that, incredibly, no one had recalled Rodale’s saying: “I’m in such good health [he was 72] that I fell down a long flight of stairs yesterday and I laughed all the way.” “I’ve decided to live to be a hundred.” And the inevitable “I never felt better in my life!” (The gods and their sense of humor.)

That happened back in 1971. I remember something else like that from back in the 1970s. The actor Peter Finch was on the show and, if I am remembering this correctly, he -- or someone else on the couch with him that night -- talked about death and said by the time he would be on the show the next time some of the people listening to him saying this would be dead. Finch himself died a week day later.

There's such a thing as dressing for court, and we have to talk about what Deborah Jeane Palfrey wore. If you're looking for signs that she is what she's accused of, what should you look for? Running a sex ring is a business, but does that mean you'd wear a business suit? People who run businesses can wear all sorts of things, but do they wear what their employees wear? It's more predictable that they would dress in the way that would inspire trust in their clients:

If it turns out that Washington men have their own madam -- with a stable of college-educated call girls -- then it makes sense that she would look like the many anonymous staffers who are paid to keep these men's schedules and -- for a time -- their secrets.

And that's what Palfrey did.

By the way, do you have a problem with the word "madam" to refer to what Palfrey is accused of? Dictionary definition:

abbr. Mdm. 1. Inflected forms: pl. Mes·dames (m-dm, -däm) Used formerly as a courtesy title before a woman's given name but now used only before a surname or title indicating rank or office: Madam Ambassador. 2. Used as a salutation in a letter: Dear Madam or Sir. 3. madam Used as a form of polite address for a woman: Right this way, madam. 4. madam The mistress of a household. 5. madam A woman who manages a brothel.

My problem isn't that a word that is supposed to embody respect for women has gotten associated with something degrading. That is the ordininary way language develops. I'm trying to think of other examples of the way a lofty word must be brought down. Help me out here. I'm thinking of naming the dog "King," saying "You're a prince" to a jerk, and calling a young woman with a ridiculous sense of entitlement a "princess."

My problem with the use of the word is that a madam is supposed to "manage a brothel," to have a household relationship with the workers. Connecting people up by telephone and email isn't the same.

May 3, 2007

1. Yes, I'll do it. And I'll do it without TiVo assistance. Going TiVo-less is not just to make me completely spontaneous. I don't want to get bogged down in it. Once I start pausing, I start feeling responsible for everything. But there will be a transcript later for that. And, dammit, I want the TiVo for "Survivor"!

2. I didn't realize there was a debate today until someone asked me this morning if I was going to watch it. Oh, no. I guess I am. But how many candidates? 8 for the Democrats was pretty annoying, though the 8th guy -- Gravel -- did provide some comic relief. I have to listen to 10 Republicans? 10! Who the hell are they? 10? Let's see there's Giuliani and McCain... uh.... and Tommy Thompson but not Fred Thompson... conversation about whether Tommy gets any boost in popularity by having the same name as the strangely longed-for non-candidate Fred... so, come on, you only got 3. There's 10! Where's my coffee? I can't believe you don't even remember Romney. Oh, yeah, Romney. How could I forget? Who else? A Senator from Kansas? A Senator from Kansas, really? Not Dole... Brownback! Oh, he's from Kansas. How perfectly boring. Huckabee. Oh, yeah, Huckabee. He used to be fat. Yikes, that's still only 6! Who are the other 4? And I'm committing to listening to them? Ron Paul. He might be amusing. Who else? I look it up: Jim Gilmore, Duncan Hunter, Tom Tancredo. Oh, the pain.

3. The Reagan Library set is glossy, what with the reflection on the underside of Air Force One, suspended over the heads of the audience. So are you pouring a big glass of wine and planning to take a sip whenever anyone says "Reagan" and drain the glass if anyone says "I knew Ronald Reagan, and you're no blah blah blah"? Nancy Reagan is there, sitting with Arnold Schwarzenegger. The voiceover guys are gushing about how "regal" the setting is. Chris Matthews gives a snazzy introduction, brimming with enthusiasm for Reagan. Reagan Reagan Reagan. Agghh. Where's my wine glass?

4. Ooh, it's closed book. No notes allowed. The first question is about optimism (like Reagan's) and pessimism (shown in the current polls). Giuliani has one minute, and he leverages in statements about immigration, health care, and the war on terror. McCain is next. He stammers a bit but sounds very strong -- and angry at the congressional Democrats for cheering surrender in Iraq. Tommy Thompson looks awful, but he lays out a point-by-point political solution for Iraq. Mitt Romney looks great.

5. They're all asked if they'd amend the Constitution to let Arnold Schwarzenegger run for President. Nearly all of them say no. Right to his face. Take that. Now, we're getting some questions submitted and voted on through Politico.com. That's a nice touch. What does Romney dislike most about America? He just acts like the question is: What do you love about America?

6. Values! In other words: abortion. Okay to "repeal" Roe v. Wade? All must answer. All say yes, with different levels of passion. Giuliani says it's okay to "repeal" it, but it would also be okay for a "strict constructionist" judge to uphold it based on stare decisis. Romney is confronted about his change of mind on abortion rights, and he clearly says he changed his mind. Wasn't that purely political? He denies it and ties his change of mind to thinking about cloning. I don't believe that.

7. McCain: "I know there's good and evil in the world. I've seen it."

8. Can a business fire an employee because he's gay? Tommy: yes.

9. Romney is asked about religion, and he is speaking very well about it. Matthews keeps asking the question about whether religious faith has any relevance to the presidential race. The right answer here is rather obvious, and I think everyone on the stage knows what it is. A person's religious faith gives rise to values that matter in public life, but which religion it is doesn't matter and we shouldn't argue about that. It's really just a matter of saying that in a clear and inspiring way: America is great because of our religious tolerance, etc.

10. Halfway into this, I'd say the person making the most headway is Romney.

11. Romney takes a shot at the McCain-Feingold Act in the middle of an answer about abortion. He's referring to the effect of the Act on issues ads close to the election (something that is before the Court in the Wisconsin Right to Life case argued last week).

12. Stem cells. Tommy Thompson talks about the research going on at the University of Wisconsin in Madison, Wisconsin. That appealed to me.

13. Wow! Romney on health care! I have no idea if his policy is good. I'll have to read about it. But his form of expression was great here.

14. Tax. It's very hard to compare tax policies on the fly. Thompson struck me with his idea of dealing with the AMT by giving people the option of a flat tax: you get whichever is lower. He brags about all the vetoing he did as governor of Wisconsin and acts like he could bring that vetoing style to the White House. But Wisconsin has an extremely strong veto power. You can't do that in the White House.

15. A yes-or-no question: Do you believe in evolution? It looks like 3 of them raised their hands on no, but I didn't quite catch who.

16. Gilmore is asked a question and I realize he's made no impression on me so far.

17. Brownback is too conservative for me, but I give him credit for speaking well. He's a good voice for his position, not that I want it to succeed. "This is a set of quality candidates" he says, when asked what he doesn't like about Giuliani. I like that he doesn't take a shot at Rudy. Clearly, the two men have very different positions. People can see that, and it's cool of Brownback to be magnanimous about it.

18. Giuliani seems natural and good-humored. I think he's showing what he is in an attractive way. A moment ago he was asked the sort of pop-quiz question that isn't at all about trying to find out what his policies are: explain the difference between Shiites and Sunnis. He does it exactly right. Later, Thompson gets a question like that: How many Americans have died in the Iraq war? I don't like this sort of smart-ass question, especially when only some of them get hit with one. The idea is to see if they'll screw up. There's nothing to be learned in a positive way. Let's just see if this guy is clueless.

19. Guy! They're all guys! It just hit me. They're all white too. Should be a question on that.

21. Romney lights into Patrick Fitzgerald and the way he went after Scooter Libby. I like the way Romney is cool and controlled but gets passionate -- in a controlled way -- when it goes with his issue. Or do you think he's too slick? I think he's doing well. He's seems ready to play the role of candidate. Republicans ought to want to take advantage of that.

22. I confess to being moved to tears by Brownback talking about the sacredness of Terri Schiavo's life (even though I disagreed with what the Congress did). I'm impressed by the way this man believes what he believes and expresses this. But, of course, it would be a terrible mistake to make him the candidate.

23. Hey, Chris Matthews is doing a great job. He's keeping it lively, without seeming like he's lording his power over them. He's making it seem like fun, when it can't be fun. Nice going.

25. Giuliani uses his time to compliment the President, giving him credit for the lack of additional terrorist attacks after 9/11. He distinguishes himself in the group by going positive here.

26. In the after show hubbub, we see Romney getting into a photogenic encounter with Nancy Reagan.

27. The commentators. They're going to go on for another 90 minutes. Wow. Who will listen?

28. Glenn Reynolds has a good collection of links to other "live-blogging." I can't bring myself to use that term when I'm not there in the room. He includes a link to me, which is nice, and characterizes me as blogging "from her very own perspective." Well, yeah. What are other people doing?

The Law Blog has learned that law firm Edwards Angell Palmer & Dodge rescinded its job offer to Anthony Ciolli, the 3L at Penn Law who resigned as “Chief Education Director” of AutoAdmit last month. He resigned in the wake of a WaPo exposé on how the site in part served as a platform for attacks and defamatory remarks about female law students, among others (see our earlier post here)....

On April 11, just over a month after the WaPo story ran, DeWitt sent a letter to Ciolli stating that the firm had recently learned of the controversy involving AutoAdmit, in particular its “off-topic” message board, and that “the information we now have raises serious concerns about your joining our firm.”

[Boston managing partner Charles] DeWitt wrote that the content of the messages on the board are “antithetical” to the values of the firm and the “principles of collegiality and respect that members of the legal profession should observe in their dealings with other lawyers.” DeWitt pointed out that in an online letter to another blogger, Ciolli and his partner Jarret Cohen identified themselves as AutoAdmit’s administrators and defended its “free, uninhibited exchange of ideas.”

DeWitt continued: “We expect any lawyer affiliated with our firm, when presented with the kind of language exhibited on the message board, to reject it and to disavow any affiliation with it. You, instead, facilitated the expression and publication of such language. . . . ” He wrote, his resignation from the site was “too late to ameliorate our concerns.”...

Cohen, a 23-year-old insurance broker in Allentown, Pa., who says he founded AutoAdmit and currently runs the site, told the Law Blog: “It was me. I created the message board. I exercised ultimate authority. Anthony didn’t endorse any of this stuff. He doesn’t deserve this. This is guilt by association.”

So what are the law firm's values? Not free speech. Not fairness. "Respect" for "other lawyers" -- I'll give them that. The central value is probably just a deep-seated fear of any association with controversy.

"He said he could not go on," staff member Shawn O'Neal wrote two days later in a statement ordered by the Garfield County Sheriff's Office. "I felt that he could make it this short distance and told him he could do it as I have seen many students sore, dehydrated and saying 'can't' do something only to find that they have strength beyond their conceived limits."

O'Neal didn't inform Buschow about his emergency water.

"I wanted him to accomplish getting to the water and the cave for rest," he wrote. "He asked me to go get the water for him. I said I was not going to leave him. ... Shortly thereafter I had a bad feeling and turned to Dave and found no sign of breathing."...

[One of the campers said:] "One thing that [Boulder Outdoor Survival School] offers you is an opportunity to push yourself physically into the red zone. ... He was 200 feet from the water. Is that the point where you give it to him? Or 500 feet?"

The guides were not charged with a crime, and of course, BOSS required the campers to waive any tort liability.

For the past two and a half years, the page has been run by an Obama supporter from Los Angeles named Joe Anthony. At first, that arrangement was fine with the Obama team, which worked with Anthony on the content and even had the password to make changes themselves.

But as the site exploded in popularity in recent months, the campaign became concerned about an outsider having control of the content and responses going out under Obama's name and told Anthony they wanted him to turn it over.

In this new frontier of online campaigning, it's hard to determine the value of 160,000 MySpace friends—about four times what any other official campaign MySpace page has amassed. But the Obama campaign decided they wouldn't pay $39,000, which is what Anthony said he proposed for his extensive work on the site, plus some additional fees up to $10,000.

MySpace reluctantly stepped in to settle the dispute and decided that Obama should have the rights to control http://www.myspace.com/barackobama as of Monday night, while Anthony had the right to take the contact information for all the friends who signed up while he was in control. That includes the right to tell them exactly how he feels about the Obama campaign.

There is a bundle of questions here. Is it acceptable for a someone to use someone else's name for their URL? Should MySpace have done Obama's bidding or protected the individual user? Should someone who claims to be a candidate's supporter try to extract money from the campaign? If the effort to extract the money fails, should the erstwhile supporter denounce the candidate on line? What will happen in the next instance, as candidates and individual users see how this little drama plays out?

I did want to be paid, if we were to continue working together . This was not an attempt to use this profile for commercial purposes. This was an attempt to keep working my ass off on this profile, for Barack Obama, and for the enormous community of supporters on Myspace....

The campaign got involved in February and although at first it was very exciting, it quickly became clear that they just had no interest in me or my involvement. They only wanted to take control of the profile and get on with it. I bit the bullet for a while and kept working for the good of the campaign, but they quickly went from passive aggressive, to aggressive, and then eventually just rotten and dishonest....

Apparently the message here is, as an individual, if you have too big of an impact, you're just a liability.

This is how Obama lost my vote, and one of his strongest supporters....

... I'm passionate about this right now. All this work, all this progress is down the drain, and I'm absolutely heart-broken.

Read the whole thing for Anthony's details of how the campaign treated him. It's notable that Anthony had worked on the profile since 2004. There are tons of comments to his blog post, presumably many of them from the people Anthony had previously inspired to support Obama. Sample comments:

HAHA this is funny stuff. This is the first thing I know of that obama has accomplished....

This is so not cool... I've disassociated myself with the Obama campaign and will seriously question if I'll do anything to help him get elected. He seemed better than this, but it is all about his 'managers' and from what I can see, they bite. Honestly, is Bush the problem, or is it his managers? This smacks of the kind of thing Karl Rove would embrace... not good Mr Obama, not good at all....

I was considering to vote for obama, but not anymore. If this is how his lackeys act in the shadows it may be the way that he would run the government.

the fact that there was an unofficial fan page out there with an official-sounding URL and 160,000 friends that could potentially misrepresent Obama....

Cry me a river you leach. You don't volunteer to help a candidate then turn around and demand $39,000 for something thats not even yours to begin with(according to Myspace EULA)....

Guys ... if this guy was doing all this web-work out of the goodness of his heart, and truly unconditionally supported Barak, why didnt he just offer up the page for free?...

This guy was asking for way to much for a page that wasn't rightfully his to begin with, and I sure wouldn't want my donation to Obama's campaign to go to paying off some guy on Myspace....

And now the bloggers will talk about this. And the blogger's commenters. What do you think? What do I think? It's really bad to destroy someone else's work, and really stupid when that person was your supporter -- your influential supporter. What could they have thought made it worth making this ugly, conspicuous power play? The fear of losing control of your message? But expressing that fear also makes you look bad! You don't like people independently expressing political messages, and you want to control things? That's bad enough, but you didn't succeed in controlling him -- he seems to have a bigger audience right now -- and you've converted his message from a positive one to a negative one.

UPDATE: Here's the response from the Obama campaign. It contains too many excuses about how hard it is to run a political campaign and relies too heavily on their sense of entitlement to Anthony's website. There are vague references to their "arrangement" with Anthony, but it looks as though they never came to terms about it. Why did they wait so long to put something in writing? Were they naive and incompetent or did they mean to get their foot in the door by being low key and, over time, to make Anthony feel that he owed them the site?

At the end of the day, this is all new for everyone -- this Joe, that Joe, and everyone participating or commenting on it. We're flying by the seat of our pants, and establishing new ways of doing things every day. We're going to try new things, and sometimes it's going to work, and sometimes it's not going to work. That's the cost and that's the risk of experimenting.

You might want to try to project an image of competence if you want to be President.

May 2, 2007

With 6 left and 2 going down, 100 million votes are cast, and 2 white males go down. Time to be proud of America as the 3 black women survive and 2 white guys have to leave. One of them, Phil, did a great job last night. I thought he'd make it, and he deserved to make it. Chris, I knew he'd reached the end. But I thought Phil would survive and Jordin, LaKisha, or Melinda would go, but all 3 of them made it. I feel a little bad about Phil, but more than that, I feel good that with 3 black women in the final 6 and 2 going down tonight that all 3 black women made it. Nice showing, America! And who's that other person? It's Blake. A white guy. My personal favorite, but nevertheless, I want the record to show that America voted and kept 3 black women in the final 4. That means something.

ADDED: To understand my point, remember in the third season, when it was down to the final 7, the 3 black women -- who, I think, were the 3 best singers on the show -- got voted into the bottom 3. This was the episode when "America" voted off Jennifer Hudson, the young woman who went on to win the Oscar for her performance in "Dreamgirls." There was a lot of talk at the time that Americans were not voting fairly. Now, the voting system is complex, and people cast more votes when they think their favorite is in danger, so even then, some of the charges of racism went too far. But, traditionally, over all the seasons, we've seen white male singers stay on the show when superior black female singers have been voted off. That did not happen last night.

Interesting. Both the power of a website's community over its owners and the issue that moved them to wield their power.

Pleading for the Digg hive mind to practice self-moderation, CEO Jay Adelson responded on the company blog at 1PM Pacific Time: "We all need to work together to protect Digg from exposure to lawsuits that could very quickly shut us down."

Diggers continued their revolt, however, overloading the site with the thousands of places where the [HD-DVD] encryption code can easily be found online, until servers started spouting 404 errors and moderators finally gave up trying to control the rabble about eight hours after Adelson's plea.

What's the difference between a "hive mind" and a "mob"? Is it all a matter of whether it thinks what is good? But those who would like to preserve intellectual property rights have to worry that that mind -- hive or mob -- is generating the new idea of the good.

I was going to blog about it yesterday, but it bored me too much. It's long. I read it. You might think I hate to waste the effort and not produce a post, but it's something I do a lot. Unless I find something interesting, I don't post.

You know, the first time I heard about blogs, I imagined there was some sort of requirement to note each article you happened to read, that "web log" was to be taken literally, and the idea was to keep a log on the web of everything you read on the web. I don't know what it is about me that I tend to perceive requirements, rules, and restrictions in activities where there is no governing body and no mechanism of enforcement.

Conservatives have crowed for years that they have "won the war of ideas." More often than not, such boasts include a citation of Richard Weaver's famous dictum, "Ideas have consequences." A war of ideas, though, is not an intellectual process; it is a political process. As my colleague Leon Wieseltier has written, "[I]f you are chiefly interested in the consequences, then you are not chiefly interested in the ideas." The netroots, like most of the conservative movement, is interested in the consequences, not the ideas. The battle is being joined at last.

We're told that Bon Jovi is one of the best rock bands in history, which just seems so ridiculous, but then it turns out these songs are pretty hard to sing. Jordin Sparks really can't get through the range of "Livin' on a Prayer." Simon says she "completely lost control... terrible." On either side of her, there's a pretty good singer: Phil Stacey and LaKisha Jones. Simon tells LaKisha: "I could kiss you." And she comes over and kisses him. With her lipstick on his lips, he tells her she nailed it.

Bon Jovi's saying Blake Lewis is going to take a risk and "roll the dice" doing "You Give Love a Bad Name" with 16 measures without singing. But that's what we want from Blake. And, ooh, his hair is black now. Randy raves it was the most original version of a song ever on the show. Paula's all "amazing." Simon says "very brave... you took a massive risk." But was it such a risk? It would have been risky to play it safe. There are only 6 left, and 2 are leaving this week.

Chris does "Wanted Dead or Alive." I'm betting on dead.

Melinda Doolittle has kind of a crappy song to do: "Have a Nice Day." Do people know this song? She's trying to prove herself as a rocker, using, I think, Tina Turner as a model. Randy detects Tina in it. So does Simon, who sees her as clearly the best.

So who goes home? If it were just based on tonight, it would have to be Chris and -- terrible! -- Jordin. But we're adding the votes from last week, so who knows?

Ryan says: "And on a different note, we have got some very special thanks to share with you." Suddenly, on the screen behind him... it's George and Laura Bush. I hear a bit of a sorrowful "oh" from the audience. This isn't what they've been expecting. George and Laura thank people for contributing money last week and showing "the good heart of America." He jokingly threatens to sing. Very scripted. But nice. Unless you hate Bush. Then it's got to be how dare he invade my show.

The champion phallus from this Meller’s duck is a long, spiraling tentacle. Some ducks grow phalluses as long as their entire body. In the fall, the genitalia will disappear, only to reappear next spring....

Most of the time it remains invisible, curled up inside a bird’s body. During mating, however, it fills with lymphatic fluid and expands into a long, corkscrew shape. The bird’s sperm travels on the outside of the phallus, along a spiral-shaped groove, into the female bird.

Okay, now, why does the NYT have a big story about a post-doc whose research is measuring duck dicks? Score one big point if you guessed that her theory has to do with the superiority of the female:

Species with more forced mating tend to have longer phalluses. That link led some scientists to argue that the duck phallus was the result of males’ competing with one another to fertilize eggs....

Dr. [Patricia] Brennan realized that scientists had made this argument without looking at the female birds.....

Working with Kevin McCracken of the University of Alaska and his colleagues, she caught and dissected 16 species of ducks and geese, comparing the male and female anatomy.

If a male bird had a long phallus, the female tended to have a more elaborate lower oviduct. And if the male had a small phallus, the female tended to have a simple oviduct....

Dr. McCracken... is struck by the fact that it was a woman who discovered the complexity of female birds. “Maybe it’s the male bias we all have,” he said. “It’s just been out there, waiting to be discovered.”

That's what NJ Governor Jim McGreevey said to his wife Dina Matos McGreevey to prepare her to stand next to him as he went public about his gay relationship. I'm hearing her say this on "The Oprah Winfrey Show." (Dina is promoting her book "Silent Partner: A Memoir of My Marriage.") Oprah has been trying for 15 minutes to get her to explain what the hell she was smiling about as she stood next to her husband when he told the world that he'd been unfaithful to her. It's what every woman wants to know, says Oprah.

"No one ever said to me that he was gay," she said. "It's a cliche that the wife is always the last to know, and it's true."

Matos McGreevey said she was shocked by her husband's revelation, which she said came in "cowardly installments."

"I'm not in denial, but I don't think he's simply gay. I think he's bisexual," she said. "I mean, he was married twice. He has two children. And, you know, I never saw him checking out men, but I certainly saw him checking out women."

There's something creepy about this show. The McGreeveys are engaged in a big legal fight over the custody of their daughter, yet Oprah seems to want to present the show as saying something to all the many individuals who find out that their spouse lacks the sexual orientation that corresponds with the marriage. This is a serious issue, but Dina has a legal stake in portraying herself as having been utterly in the dark.

The creepiness swells when Oprah shows Dina a clip of Jim McGreevey when he appeared on her show. Oprah had asked him what it was like when he had sex with his wife. We see a split screen. He says "It was special." Dina smiles. Oprah pushes him: Was it real? He says, "I thought it was real," and so does Dina.

Dina talks about seeing a manuscript, where McGreevey wrote that he married her for political purposes. She says that if he'd been able to keep his secret he'd be running for President right now. And she says that in her hour of need she turned to Hillary Clinton. Hillary took the call, and Dina said "You're the only person that came to mind when this happened." This gets a big laugh from the Oprah audience. (Hillary told her to get her own advisors and to take care of herself and her daughter.)

We learn that Dina continued to live with McGreevey -- and share his bed -- for three months after she learned of his betrayal. Oprah expresses disbelief: Even if you had nowhere else to go, "It's the Governor's Mansion. You had lots of bedrooms. You could say, look, I'm gonna be down the hall, and I'll see you at breakfast." Dina said she thought he should have moved out.

In the end, Oprah asks Dina to say something to all the heterosexual people who discover they have married a gay person. Her message is: You've done absolutely nothing wrong. Don't blame yourself. Oprah asks her if she's dating again, and she says no. She blames McGreevey, who's destroyed her trust in people, "especially men."

Oprah crisply responds, "Yeah. Well, we contacted the former governor for a statement and here's what he said and wanted us to say" -- Oprah touches her cheek with her index finger, a gesture I've seen myself make on video and think means I'm not quite saying everything I'm thinking -- "'Congratulations, you're sitting on America's favorite couch. I wish you well in your journey. With the telling of this book, Dina has now had an opportunity to share her story, as I did with mine. Now, hopefully, is the time to look to the future, to raise our daughter, in a loving, nurturing environment.'"

Here's the look on poor Dina's face:

"It's a classic McGreevey performance," Dina says. I wonder if she realizes how much Oprah was on McGreevey's side through the interview. Based on that look on her face, I think she does.

It's beautiful out there, but really, can you study outdoors? Yesterday, a student said let's do the class outdoors. Oh, no, no, no. That is not going to work. I've never taken the class outdoors in 20+ years of teaching. I don't think you can take the subject seriously outdoors. The subject is habeas corpus, the death penalty... how can you talk about that outdoors?

Are you titillated by this story? If so, are you titillated by the idea that there are prostitutes afoot in this world or by the prospect of bringing down "a Bush administration economist, the head of a conservative think tank, a prominent CEO, several lobbyists, and a handful of military officials"? Which source of titillation is more embarrassing for the titillatee?

Me, I can't get excited about prostitutes. There are always prostitutes and clients for prostitutes.

US officials have long talked of friction between al-Qaeda and other Sunni insurgent groups. The reported killing would suggest there are real tensions for US and Iraqi officials to exploit, our correspondent says....

Even if Masri is dead, it would be premature to expect a sudden drop in violence, our correspondent says. Al-Qaeda in Iraq has become far more decentralised and therefore less dependent on the leadership of any one individual.

But if it's "decentralised" in a way that has them killing each other, that's a good thing.

Either he's really naming what actually is his favorite novel -- would a serious candidate do that? -- or there's some idea that it serves his interests, as a candidate who has to worry that some Americans will find his Mormon religion too weird, to associate himself with a religion Americans are likely to find even weirder.

In the year 3000 AD, Earth has been ruled by an alien race, the Psychlos, for a millennium. Humanity has been reduced to a few scattered tribes in isolated parts of the world while the Psychlos strip the planet of its mineral wealth. Jonnie Goodboy Tyler, a member of one such tribe, lives in the shadow of the Rocky Mountains. He leaves his village to explore the lowlands and to disprove the superstitions long held by his people involving ancient gods and monsters. However, he is captured in the ruins of Denver by Terl, the Psychlo chief of security. The Psychlos, hairy 9-foot high, 1000-pound sociopaths, originate from a planet with an atmosphere very different from that of earth. Their "breath-gas" explodes on contact with even trace amounts of radioactive metals, such as uranium. From the very beginning, the reader learns that Terl has discovered a lode of gold up in the Rocky Mountains that he wants to get his hands on "off the company books" but is surrounded by uranium deposits that make Psychlo mining impossible. Terl captures Jonnie by accident while searching for "man-animals" to train to mine where he himself cannot.

After a time, Terl captures Jonnie's girlfriend and her little sister and uses the threat of their deaths to ensure cooperation from Jonnie. Jonnie is afterwards free to move around the mining area. Shortly thereafter, Terl and Jonnie travel to Scotland and recruit 83 Scottish youth to help with the mining. Jonnie, however, has different plans. Due to the fact that Terl does not understand English, Jonnie is able to convince the Scots to help him overthrow the Psychlo rule on Earth.

During the next several months, Jonnie and the Scots try to mine the gold as well as develop a means of defeating not only the Psychlos on Earth, but also nullify the threat of counterattack that could come from the Psychlo (the Psychlo's home planet). During the semi-annual teleportation of personnel, goods, and coffins (all dead Psychlos are shipped home for burial on Psychlo) back to Psychlo, Jonnie and the Scots manage to pack several of the huge coffins with nuclear dirty bombs and "planet busters" in hopes of destroying the Psychlo's home planet. After the teleportation firing, the humans use the Psychlo's own war planes, tanks, and weapons against them and regain control of Earth.

This is, however, not the end of the story. Unsure as to whether the bombs sent even reached Psychlo and under the imminent threat of counterattack, Jonnie must now defend his newly-retaken planet against the predatory interests of several other interstellar races, including a race of intergalactic bankers seeking to repossess the Earth in lieu of unpaid debts, as well as a newly-emerging group of humans seeking to wrest control of Earth from him. He must also accomplish what no other race in 300,000 years has been able to do: uncover the secret of Psychlo mathematics and teleportation if the human race is to have a future in a galaxy full of hostile races...

Romney is quoted as saying it's "a very fun science-fiction book," but mining, banking, coffins... Hard to tell from that summary what the fun is (unless it's the sheer childishness of it all).

April 30, 2007

[T]he only really interesting question is why the president did not fire this vain and useless person on the very first day of the war.... [W]ho cares whether his "slam dunk" vulgarity was misquoted or not? We have better evidence than that. Here is what Tenet told the relevant Senate committee in February 2002:

Iraq … has also had contacts with al-Qaida. Their ties may be limited by divergent ideologies, but the two sides' mutual antipathy toward the United States and the Saudi royal family suggests that tactical cooperation between them is possible, even though Saddam is well aware that such activity would carry serious consequences.

.... As for his bawling and sobbing claim that faced with crisis in Iraq, "the administration's message was: Don't blame us. George Tenet and the CIA got us into this mess," I can say, as one who has attended about a thousand postmortems on Iraq in Washington, that I have never, ever, not once heard a single partisan of the administration say anything of the kind....

The Edinburgh team, led by Professor Robert Millar, have been looking at the properties Type 2 Gonadotrophin-releasing hormone.

When it was given to monkeys, they displayed mating behaviour such as tongue-flicking and eyebrow-raising to the males, while female shrews displayed their feelings via "rump presentation and tail wagging".

But the animals also ate around a third less food than they normally would.

Tongue-flicking and eyebrow-raising, eh? I look forward to the day when the world is full of skinny women who seem to be imitating Groucho Marx and William F. Buckley simultaneously. Sexy!

The Supreme Court, in a major victory for Microsoft Corp.... Microsoft Corp. v. AT&T...

In a second ruling on patent law, the Court decided unanimously that the Federal Circuit Court had been wrong in taking a narrow view of when an invention is "obvious" and thus cannot be patented.... KSR International v. Teleflex....

... [P]olice do not act unconstitutionally when they try to stop a suspect fleeing at high speed by ramming the suspect's car from the rear, forcing it to crash..... Scott v. Harris....

[I]f a taxpayer could have sued to challenge an erroneous federal tax levy, but fails to do so on time, may not later sue for a refund... EC Terms of Trust v. U.S....

... [L]ocal government does not violate the Constitution when it [requires] all solid waste generated in the community to be processed at a publicly owned facility, so long as the ordinance treats private businesses the same whether they are local or out-of-state.... United Haulers Association v. Oneida-Herkimer Solid Waste Management...

The last one, a negative (dormant) Commerce Clause case, is especially interesting to me. Here it is, with four separate opinions, written by, oddly enough, Roberts, Scalia, Thomas, and Alito. Roberts announces the decision:

We hold that the Counties’ flow control ordinances, which treat in-state private business interests exactly the same as out-of-state ones, do not “discriminate against interstate commerce” for purposes of the dormant Commerce Clause.

Because he finds no discrimination, he goes on to the balancing test (the "Pike test"):

Under the Pike test, we will uphold a nondiscriminatory statute like this one “unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.”...

We find it unnecessary to decide whether the ordinances impose any incidental burden on interstate commerce because any arguable burden does not exceed the public benefits of the ordinances.

The ordinances give the Counties a convenient and effective way to finance their integrated package of waste-disposal services....

At the same time, the ordinances are more than financing tools. They increase recycling in at least two ways, conferring significant health and environmental benefits upon the citizens of the Counties....

The Counties’ ordinances are exercises of the police power in an effort to address waste disposal, a typical and traditional concern of local government.

I have been willing to enforce on stare decisis grounds a “negative” self-executing Commerce Clause in two situations: “(1) against a state law that facially discriminates against interstate commerce, and (2) against a state law that is indistinguishable from a type of law previously held unconstitutional by the Court.”... As today’s opinion makes clear, the flow-control law at issue in this case meets neither condition. It benefits a public entity performing a traditional local-government function and treats all private entities precisely the same way....

I am unable to join Part II–D of the principal opinion, in which the plurality performs so-called “Pike balancing.” Generally speaking, the balancing of various values is left to Congress—which is precisely what the Commerce Clause (the real Commerce Clause) envisions.

Thomas concurs. He would get rid of negative Commerce Clause enforcement altogether:

The negative Commerce Clause has no basis in the Constitution and has proved unworkable in practice.... As the debate between the majority and dissent shows, application of the negative Commerce Clause turns solely on policy considerations, not on the Constitution. Because this Court has no policy role in regulating interstate commerce, I would discard the Court’s negative Commerce Clause jurisprudence.

Alito dissents, joined by Stephens and Kennedy. He perceives discrimination:

[T]hese laws discriminate against interstate commerce (generally favoring local interests over nonlocal interests), but are defended on the ground that they serve legitimate goals unrelated to protectionism (e.g., health, safety, and protection of the environment). And while I do not question that the laws at issue in this case serve legitimate goals, the laws offend the dormant Commerce Clause because those goals could be attained effectively through nondiscriminatory means....

The key, based on past precedent, is that the processing plant was not privately owned, as Roberts emphasizes:

“Flow control” ordinances require trash haulers to deliver solid waste to a particular waste processing facility. In C & A Carbone, Inc. v. Clarkstown, this Court struck down under the Commerce Clause a flow control ordinance that forced haulers to deliver waste to a particular private processing facility. In this case, we face flow control ordinances quite similar to the one invalidated in Carbone. The only salient difference is that the laws at issue here require haulers to bring waste to facilities owned and operated by a state-created public benefit corporation. We find this difference constitutionally significant. Disposing of trash has been a traditional government activity for years, and laws that favor the government in such areas—but treat every private business, whether in-state or out-of-state, exactly the same—do not discriminate against interstate commerce for purposes of the Commerce Clause.

I would have been very surprised if the case had come out the other way. It's true Roberts doesn't have a majority, but that is only because Scalia and Thomas are even less willing to strike things down on a negative Commerce Clause theory. It's interesting to see Alito break away from Roberts, Scalia, and Thomas, especially since he perked up at the invocation of "traditional government activity":

[T]his Court has previously recognized that any standard “that turns on a judicial appraisal of whether a particular governmental function is ‘integral’ or ‘traditional’ ” is “ ‘unsound in principle and unworkable in practice.’ ” Garcia v. San Antonio Metropolitan Transit Authority (1985) . Indeed, the Court has twice experimented with such standards—first in the context of intergovernmental tax immunity, see South Carolina v. United States (1905) , and more recently in the context of state regulatory immunity under the Commerce Clause, see National League of Cities v. Usery (1976) —only to abandon them later as analytically unsound. See Garcia, supra, at 547 (overruling National League of Cities); New York v. United States (1946) (overruling South Carolina v. United States). Thus, to the extent today’s holding rests on a distinction between “traditional” governmental functions and their nontraditional counterparts, it cannot be reconciled with prior precedent.

This unnecessary invocation of Garcia is not what you'd expect from a Justice dedicated to federalism.

[R]eading the lower court’s opinion, one gets the impression that respondent, rather than fleeing from police, was attempting to pass his driving test:

“[T]aking the facts from the non-movant’s viewpoint, [respondent] remained in control of his vehicle, slowed for turns and intersections, and typically used his indicators for turns. He did not run any motorists off the road. Nor was he a threat to pedestrians in the shopping center parking lot, which was free from pedestrian and vehicular traffic as the center was closed. Significantly, by the time the parties were back on the highway and Scott rammed [respondent], the motorway had been cleared of motorists and pedestrians allegedly because of police blockades of the nearby intersections.” Id., at 815–816 (citations omitted).

The videotape tells quite a different story. There we see respondent’s vehicle racing down narrow, two-lane roads in the dead of night at speeds that are shockingly fast. We see it swerve around more than a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to their respective shoulders to avoid being hit. We see it run multiple red lights and travel for considerable periods of time in the occasional center left-turn-only lane, chased by numerous police cars forced to engage in the same hazardous maneuvers just to keep up. Far from being the cautious and controlled driver the lower court depicts, what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury....

Respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.

"Visible fiction"? Is that a typo for "risible fiction"?

Anyway, I watched the video, and I understand why you'd want to reject the plaintiff's characterization of the facts. But this is a case about when to grant summary judgment, avoiding trial. Justice Stevens dissented:

[T]he Court has usurped the jury’s factfinding function and, in doing so, implicitly labeled the four other judges to review the case unreasonable.....

If two groups of judges can disagree so vehemently about the nature of the pursuit and the circumstances surrounding that pursuit, it seems eminently likely that a reasonable juror could disagree with this Court’s characterization of events....

The Court today sets forth a per se rule that presumes its own version of the facts: “A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.” Not only does that rule fly in the face of the flexible and case-by-case “reasonableness” approach applied in Garner and Graham v. Connor, 490 U. S. 386 (1989) , but it is also arguably inapplicable to the case at hand, given that it is not clear that this chase threatened the life of any “innocent bystande[r].” In my view, the risks inherent in justifying unwarranted police conduct on the basis of unfounded assumptions are unacceptable, particularly when less drastic measures—in this case, the use of stop sticks9 or a simple warning issued from a loudspeaker—could have avoided such a tragic result. In my judgment, jurors in Georgia should be allowed to evaluate the reasonableness of the decision to ram respondent’s speeding vehicle in a manner that created an obvious risk of death and has in fact made him a quadriplegic at the age of 19.

These seem meaningful, especially if you're into woozy, intuitive impressionism. (Nice, clear PDF here.) Make what you will of the particular words that a particular candidate repeats -- like Obama and "women" and Clinton and "president" -- but what I noticed is the propensity to repeat words. I think that using a more varied vocabulary -- producing a tag cloud with more tiny words -- is a sign of subtlety of mind and intelligence. Who wins by this measure? Why, Dennis Kucinich. Of course, I know plenty of really smart people who end up in a position that is too far left for the Presidency, but still, the guy deserves some credit. Now, it may simply be a candidate who knows he can't win has more freedom to range from a pre-set formulation of his message.

Or it may just be that tag clouds are absurd. Hmmm, well let me make a tag cloud of the current front page of my blog as if that means something about me:

Crow was ... insistent, poking Rove in the chest and pinching his arm. She said Rove worked for her. Rove said he worked for the American people. Crow said she and David were the American people. And at that point, Rove turned and sat back down at his table, where he was a guest of the New York Times.

The point of recounting this stunt by two of Hollywood's most prominent limousine liberals--who have accused Rove of rudeness--is to put him in the proper political context. He is the chief target of Democrats, liberals, and the left, and they burn with a desire to see him discredited, fired, and jailed....

Even in Watergate, no single aide in the Nixon White House was pursued as relentlessly as Rove has been. Yet these investigations have uncovered one dry hole after another. And unless beating Democrats by ordinary political means becomes a crime, Rove will remain at large and at work. The best Democrats can hope for is to insult and assault him at a Washington dinner.

Barnes -- appropriately -- thinks it's ridiculous that Sheryl Crow and Laurie David claim privilege access as the embodiment of "the American people." But by the end of his article, he's blithely presenting them as the embodiment of Democrats. I'm sure plenty of Democrats are irritated by the way Crow and David displayed themselves at the White House Correspondents' Dinner and preened about it afterwards and, more broadly, by the way they're trying to make themselves the face of the Global Warming issue.

I didn't link to this nicely written column by David Brooks a few days ago because it was behind the TimesSelect wall, but here it is reprinted in a little Connecticut paper. Brooks says you have to ask Barack Obama every question twice, "the first time to allow him to talk about how he would talk about the subject, and the second time so you can pin him down to the practical issues at hand."

If you ask him about the Middle East peace process, he will wax rhapsodic about the need to get energetically engaged. He'll talk about the shared interests all have in democracy and prosperity. But then when you ask him concretely if the U.S. should sit down and talk with Hamas, he says no. “There's no point in sitting down so long as Hamas says Israel doesn't have the right to exist.”...

In other words, he has a tendency to go big and offer himself up as Bromide Obama, filled with grand but usually evasive eloquence about bringing people together and showing respect. Then, in a blink, he can go small and concrete, and sound more like a community organizer than George F. Kennan.

But don't all candidates do this? Maybe the real difference is that a lot of people love the "Bromide Obama" routine... at least for now. It's not the evasiveness that's special. It's the eloquence. The supposed eloquence. I don't consider evasive speech eloquent myself. But clearly, Obama in his windy, inspirational mode has impressed people. At least for now.